The Newburyport News reported that Joel Napolitano, 29 of Groveland has been charged with 3 counts of distributing obscene material, 2 counts of distributing obscene material to a minor and 5 counts of open and gross lewdness. According to the report, since February Napolitano would use his cell phone to show employees of the Fitness Factory pictures of his genitals. He also showed them a video in which he was engaged in a lewd sex act. It is further alleged that the defendant had improper communications of a sexual nature with the 16 year old daughter of one of the employees. Upon his arrest Napolitano told the police that he never showed the employees the pictures. Rather, they located them on his cell phone without his permission. Bail was set at $500 and the defendant was ordered to stay away from the Fitness Factory. Read entire article in the Newburyport News.
Open and gross lewdness is proscribed by Massachusetts General Laws Chapter 272 Section 16. The law states that “[a] man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.” In order to convict someone for open and gross lewdness in Massachusetts the “prosecution must show that (1) the defendant exposed his or her genitals, buttocks, or breasts to one or more persons; (2) the defendant did so intentionally; (3) the defendant did so “openly,” that is, either the defendant intended public exposure or recklessly disregarded a substantial risk of public exposure to others who might be offended by such conduct; (4) the defendant’s act was done in such a way as to produce alarm or shock; and (5) one or more persons were in fact alarmed or shocked by the defendant’s exposure.” Commonwealth v. Kessler, 442 Mass. 770 (2004). In this case it is unclear whether the 4th and 5th prongs of this test were met. If in fact Napolitano did show the pictures to employees for an eight month period and no complaints were made until just recently there may be a defense to this crime. You have to wonder why it took so long to make these complaints if the other employees were truly alarmed or shocked.
Disseminating materials harmful to minors is a criminal act in Massachusetts under Massachusetts General Laws Chapter 272 Section 28. It carries a potential sentence of 5 years in state prison and a rather stiff fine. These crimes cannot be continued without a finding. Distributing obscene materials is a criminal act pursuant to Massachusetts General Laws Chapter 272 Section 29. This too is punishable for up to 5 years in state prison. In order to convict under either statute, the materials must fit the definition set forth in G.L. c. 278, § 31. Section 31 defines “matter” for purposes of the obscenity statutes as “any printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” See Commonwealth v. O’Keefe, 48 Mass. App. Ct. 566, 567 (2000).
Stephen Neyman is an experienced Essex County Sex Crimes Defense Lawyer who has successfully defended against allegations that this defendant faces. These charges are quite serious and in some cases a conviction could result in the defendant having to register as a sex offender with the Massachusetts Sex Offender Registry Board. If you have been charged with one of these crimes you need a lawyers. Contact our office now to discuss your case.